Comments posted on Indian Express website over article: Personal law, social myths by Dr. Tahir Mahmood
Dr. Tahir Mahmood had opted to figure out the true spirit of Islam in relation to monogamy and/or bigamy while advising Law Commission. One hopes he should have had the chutzpah at the same time to advise his own colleagues on the Law Commission about the true spirit of India's constitution, where state undertakes to safeguard the constitutional right to freedom of religion; so that the judiciary, a part of state, would not keep on testing the limits of their relentless provocation to Muslims on one pretext or another.
PS:Dr. Mahmood writes:"The massive reform of Muslim law in the Muslim countries may have no persuasive value for religious circles in India, but for the Indian judiciary it has."
It would appear that in a globalised world, while reforms in Muslim countries, should be of academic interest to Indian Judiciary; --- they should however not lose sight of the fact that conditions in Muslim countries are not as conducive to democratic and secular life, as it is in India.
The Supreme Court’s celebrated Shah Bano judgment of 1985 cited Mohammad Iqbal’s observation: “The question which is likely to confront Muslim countries in the near future is whether the law of Islam is capable of evolution — a question which will require great intellectual effort and is sure to be answered in the affirmative.” Soon after Iqbal’s demise the question did confront the newly established nation-states of the Middle East and, as expected by India’s far-sighted poet-philosopher, was answered in the affirmative. Since 1969, I have been researching and writing on the reforms which country after country in the Muslim world has introduced into family law. Writing in the Indian Express recently, Javed Anand discussed that work to question why, ignoring religious sensitivities, the Law Commission of India failed to recommend the introduction of similar measures in India.
The oversensitivity of the Muslims of India in respect of their personal law is a social reality — and so is official consciousness of it. Muslim religious circles here have been incessantly intolerant to codification or reform; and the powers-that-be are always considerate to this intolerance. The Terms of Reference of the Law Commission are, each time it is reconstituted, set by the government — and never have these included any aspect of Muslim law. Of course, it can take up any important legal issue suo motu, but none of the 17 Commissions set up since 1955 had ever recommended any reforms in Muslim law. No consultation with the Commission was made before enacting any law for the Muslims, including the infamous maintenance law enacted for Muslim divorcees in the aftermath of the 1985 Shah Bano case and the 1995 Wakf Act. The Supreme Court’s recommendation in the 1995 Sarla Mudgal case that the issue of reform of minorities’ personal laws should be entrusted to the Law Commission (which in turn should interact with the Minorities Commission) remains ineffective.
Mani Shankar Aiyer, commenting on the issue in his 2004 book Confessions of a Secular Fundamentalist wondered “What faith will the minorities have in the pronouncements of an all-Hindu Law Commission?” But the induction of a Muslim member in the 18th Law Commission in 2007 did not work either. Experience soon showed that on the question of perpetuating their ‘sacrosanct’ personal law — howsoever repugnant to the spirit of Islam its present practice may be — the community can disown even their most trusted well-wishers.
As in many family-law matters, Muslims are being inexplicably governed by outdated local customs repugnant to Islamic law, a report was drafted to recommend that — on the pattern of the scope of all other community-specific family laws of India — all Muslims everywhere in the country should, in family-law matters, be governed by Muslim law. The innocuous move was shouted down by religious leaders as a “conspiracy to pave the way for a uniform civil code.” The report had to be shelved.
The bigamy report addressed only the issue of sham conversions to Islam by unscrupulous non-Muslim men in a bid to escape anti-bigamy provisions of modern Hindu law. Since 1995, the Supreme Court has outlawed this practice: even by changing religion a married Hindu could not marry again without getting his first marriage dissolved. This report simply suggested that the judge-made law on the point, still being widely violated, be written by an amendment into the Hindu Marriage Act. It made no recommendation for amending Muslim law on bigamy — if it had, like the first report, this one too would have gone to the dustbin. We were not “terrified” by anything; we did say in our report that bigamy in its present form was against the spirit of Islam. We knew well that this realistic observation would create a storm in a teacup, and it did.
This emanates from certain myths: that what passes as ‘Muslim personal law’ here is the true Islamic law word for word; that blind adherence to it is covered by the right to religious freedom guaranteed by the Constitution. Every exposition of the reality that Muslim law is applicable in India not as part of Islamic faith but as part of the Indian statute-book, and that the Constitution does in no way protect it, goes unheeded.
Thus any legislative reform or codification of Muslim law in this country is a distant dream. This state of affairs is of course not confined to India. In Bangladesh and Pakistan, Hindu law is stagnating where it stood on 15th August 1947 — its total overhaul in India remains foreign to those countries.
In this situation the judiciary has an important role to play. In some recent cases the courts have made admirable efforts to read principles of Muslim law in their correct perspective. Religious circles see these rulings as mudakhalat fid-din or interference in religion. That perception might continue, but so must the on-going process of judicial restoration of true Islamic law. The massive reform of Muslim law in the Muslim countries may have no persuasive value for religious circles in India, but for the Indian judiciary it has.
The author is the Chairman of Amity University’s Institute of Advanced Legal Studies and member of the 18th Law Commission